Citation Nr: 0714791
Decision Date: 05/17/07 Archive Date: 06/01/07
DOCKET NO. 96-52 046 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to compensation pursuant to 38 U.S.C.A. § 1151
for bowel disorder and sexual dysfunction due to VA surgical
treatment provided in February 1995.
REPRESENTATION
Appellant represented by: Kathy A. Lieberman, Attorney
at Law
ATTORNEY FOR THE BOARD
Paul S. Rubin, Associate Counsel
INTRODUCTION
The veteran had active duty service from February 1976 to
October 1982.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 1997 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
North Little Rock, Arkansas.
The procedural history of this case is rather complex. The
case has been before the United States Court of Appeals of
Veterans Claims (formerly known as the U.S. Court of Veterans
Appeals) (hereinafter "Court"). It also has been before
the United States Court of Appeals for the Federal Circuit
(Federal Court). Most recently, the case returns to the
Board following a remand to the RO in June 2006 for
compliance with VCAA requirements. The RO issued a
supplemental statement of the case (SSOC) in November 2006.
The case is again before the Board. However, as discussed in
further detail below, the RO did not properly comply with the
requests of the November 2006 remand.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
A remand by the Board confers on the claimant, as a matter of
law, the right to compliance with the remand orders. Stegall
v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board
to insure compliance with remand instructions constitutes
error and warrants the vacating of a subsequent Board
decision. Id. Board decisions are routinely vacated by the
Court for a failure meet the requirements of Stegall.
VA received the veteran's claim for compensation under 38
U.S.C.A. § 1151 in May 1995, such that it must be adjudicated
in accordance with the earlier version of 38 U.S.C.A. § 1151
that was in effect for claims that were filed prior to
October 1, 1997. See VAOPGCPREC 40-97. Neither evidence of
an unforeseen event nor evidence of VA negligence is required
in order for this claim to be granted, thus creating any
easier burden for the veteran.
In this regard, despite the Board's June 2006 instructions to
provide VCAA notice under the prior standards established by
the Court prior to October 1, 1997, the RO incorrectly
provided notice under the current regulations for 38 U.S.C.A.
§ 1151 that are inapplicable in this case. In addition, in
the November 2006 SSOC, the RO incorrectly adjudicated the
claim on the merits by way of the current regulations
requiring negligence or fault by the VA, or evidence of an
unforeseen event. Finally, the September 2006 VCAA notice
letter was incorrectly sent to the Paralyzed Veterans of
America, instead of most recent representative of record,
Kathy A. Lieberman, Attorney at Law.
Although the Board regrets the additional delay that will
result, as to the evidence necessary to substantiate his
claim, the RO should provide the following information in a
VCAA notice letter that describes 38 U.S.C.A. § 1151 and
accompanying regulations in effect prior to October 1, 1997:
First, the veteran must incur a disease or injury or
aggravation of a disease or injury as the result of
hospitalization, medical or surgical treatment, submission to
a VA examination, or the pursuit of a course of vocational
rehabilitation. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358(a).
In cases of medical care, proof of actual causation between
the treatment and the disease or injury is required; the
disease or injury may not be merely coincidental therewith.
38 C.F.R. § 3.358(c)(1). The "necessary consequences" of
properly administered medical treatment to which the veteran
consented are not compensable. 38 C.F.R. § 3.358(c)(3).
Second, the injury or aggravation cannot be the result of the
veteran's own willful misconduct. 38 U.S.C.A. § 1151; 38
C.F.R. § 3.358(c)(4).
Third, such disease or injury or aggravation thereof must
result in additional disability. 38 U.S.C.A. § 1151; 38
C.F.R. § 3.358(b). The presence of additional disability is
determined by comparing the state of the veteran's physical
condition immediately preceding the disease or injury with
the subsequent physical condition resulting from the disease
or injury. 38 C.F.R. § 3.358(b)(1).
Accordingly, the case is REMANDED for the following action:
1. As for the evidence necessary to
substantiate the veteran's claim, the
RO must provide VCAA notice under the
previous version of 38 U.S.C.A. § 1151
and accompanying regulations (38 C.F.R.
3.358) that were in effect prior to
October 1, 1997. In this regard,
fault, negligence, or evidence of an
unforeseen event are not relevant in
this determination. Thus, the notice
must include the following:
(a) The evidence must show that
the veteran incurred a disease
or injury or aggravation thereof
as the result of
hospitalization, medical or
surgical treatment, submission
to a VA examination, or the
pursuit of a course of
vocational rehabilitation. In
cases of medical care, proof of
actual causation between the
treatment and the disease or
injury is required; the disease
or injury may not be merely
coincidental therewith. The
"necessary consequences" of
properly administered medical
treatment to which the veteran
consented are not compensable.
(b) The disease or injury or
aggravation thereof cannot be
the result of the veteran's own
willful misconduct.
(c) Such disease or injury or
aggravation thereof must result
in additional disability. The
presence of additional disease
or injury is determined by
comparing the state of the
veteran's physical condition
immediately preceding the
disease or injury with the
subsequent physical condition
resulting from the disease or
injury.
(d) The notice should request any
information or lay or medical
evidence not previously provided
that is necessary to
substantiate the his claim and
of what information or evidence
the veteran should provide and
what information or evidence VA
will attempt to obtain on his
behalf. The notice should also
ask the appellant to provide any
evidence in his possession that
pertains to the claim. The
notice must comply with
38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b)(1), in
addition to all other relevant
legal precedent.
2. The RO should inquire if the veteran is
still represented by Kathy A.
Lieberman, Attorney at Law. If so, a
copy of the above VCAA notice should
also be sent to her.
3. The RO should then readjudicate the
issue on appeal, considering any new
evidence secured since the November 2006
SSOC. In making this determination, the
RO should only consider the previous
version of the regulations (38 C.F.R.
3.358), in effect prior to October 1,
1997. The previous version utilizes a
"no fault" analysis. The RO should
not consider or require evidence of
negligence or fault by the VA, or
evidence of an unforeseen event.
4. If the disposition remains unfavorable,
the RO should furnish the veteran and
his attorney with another SSOC and
afford the applicable opportunity to
respond.
Thereafter, the case should be returned to the Board for
final appellate review, if in order. The appellant has the
right to submit additional evidence and argument on the
matter the Board has remanded. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
_________________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).